Terrorism said to be defined

Terrorism law is the central concern of the Netherlands-based Special Tribunal for Lebanon, an internationalized tribunal about which we've posted in the past. Established in 2007, it is charged with investigation and adjudication stemming from the 2005 assassination in Beirut of Prime Minister Rafik Hariri.

An ASIL Insight by our colleague Michael P. Scharf reports that last month the tribunal's "Appeals Chamber handed down a landmark ruling"; to be precise, it sets forth what its judges consider to be "the customary international law definition of terrorism." Entitled Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (available in Arabic, English, and French here), the 154-page decision was written by President Antonio Cassese (below right) (prior IntLawGrrls posts) on behalf of a five-man panel (men make up all the judges of this tribunal; a couple of the prosecution and defense officers listed are women).
Scharf quoted paragraph 85 of the decision -- issued in answer to request of the pre-trial chamber considering whether to confirm a pending indictment -- which sets forth the elements of the definition of terrorism at customary international law as follows:

► '[P]erpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act';
► '[I]ntent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it'; and
► '[T]he act involves a transnational element.'

Scharf predicted that the definition will have ramifications that extend past the work of this tribunal -- into the work of the U.N. Security Council Counter-Terrorism Committee established pursuant to Resolution 1373 (2001), and even into national legal systems.
That is not an entirely comforting thought.

The definition, at least as stated above, would appear to know few bounds:

► The definition would seem to sweep in state as well as nonstate actors. That should make more than a few countries uncomfortable.
► What's more, the definition would seem potentially applicable to many transnational offenses not colloquially understood to be terrorism. To name one example, much violence committed in the course of cross-border smuggling enterprises would seem to fit the bill.
Those concerns are reflected in definitions set forth elsewhere on the subject.
► For instance, 22 U.S.C. § 2656f(d)(2), which requires annual country reports on terrorism, withdraws many state actors from the net by stating:

the term 'terrorism' means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents ...

► The catchall definition set forth in Article 2(1)(b) of the 1999 International Convention for Suppression of Financing of Terrorism also is narrower, for it applies only to acts

intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict.

Arson of a structure known to be unoccupied -- or of a building occupied by combatants -- would be excluded from the Convention's definition, but not, it would seem, from the definition advanced in the new judgment from the Special Tribunal for Lebanon.
These 2 counterexamples of state practice stand in tension with the tribunal's contention that its definition constitutes customary international law.
The tribunal's decision, Scharf reports, further endorsed at least some aspects of the encompassing accomplice-liability doctrine of "joint criminal enterprise," about which we've frequently posted. That embrace of expansive culpability, coupled with the breadth of the definition stated above, creates a risk that the stigma of "international terrorist" could be applied well beyond advisable limits.

Inquiring minds want ... Burma

Heard murmurs a while back about the possibility of an international inquiry commission into abuses in Burma, the country also known as Myanmar about which IntLawGrrls frequently have posted.
A statement that Ambassador Eileen Chamberlain Donahoe (below right), the U.S. Representative to the Human Rights Council, made in Geneva Friday (hat tip) confirms that such a possibility is on the table.
Speaking during a "general debate on situations requiring the Council's attention," Donahoe 1st put the issue in context:

In Burma, the human rights situation remains grim. Under the repressive election laws that stifle meaningful competition and with the continued detention of more than 2,100 political prisoners, including Nobel laureate Aung San Suu Kyi, the November 7 elections cannot be inclusive or credible.

(credit for above left photo 1991 Peace Prizewinner Suu Kyi (prior posts)) Donahoe then articulated the aims of the United States regarding the Asian country that's been ruled by a military junta since the late 1980s:

Our overriding objective is to promote a peaceful democratic transition, encourage national reconciliation, and achieve respect for human rights. We urge an end to systematic violations of religious freedom, notably the large-scale repression against the Muslim Rohingya, including refusal to grant citizenship, severe government restrictions on travel, and discrimination in employment and educational opportunities.

Donahoe's comment concluded by referring to a March 2010 report that had recommended "a commission of inquiry with a specific fact finding mandate to address the question of international crimes." Issuing that report was Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar. The Council discussed the report at the time it was issued, but took no action. Friday, Donahoe said on behalf of the United States:

Finally, six months ago Special Rapporteur Ojea Quintana invited consideration of a commission of inquiry. The United States believes a properly structured international commission of inquiry that would examine allegations of serious violations of international law would be warranted and appropriate. My government is examining how best to proceed on this initiative.

Worth noting that Ojea Quintana's report made specific reference to the International Criminal Court. Past such commissions have been deployed in places like the former Yugoslavia and Darfur. The resulting Yugoslavia report, issued by a commission chaired by M. Cherif Bassiouni, and the Darfur report, issued by a commission chaired by Antonio Cassese, both led to international criminal cases. No less an authority than Philip G. Alston, the NYU Law Professor who recently concluded a term as Special Rapporteur on extrajudicial, summary or arbitrary executions, has recommended such commissions as "an appropriate filtering mechanism" in order to "evaluate whether or not a situation warrants referral to the ICC."

Worth watching what happens with this proposal.

Identification of genocide victim groups

(I am very grateful to IntLawGrrls for the opportunity to contribute this guest post, which is based on my article “How Do We Know Them When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide,” 10 International Criminal Law Review 1 (2010))

Any reference to “victim groups” pursuant to the 1948 Convention on the Prevention and Punishment the Crime of Genocide likely causes an instinctive turn toward the perennially popular question of which types of groups should be included within the definition of genocide. An equally fundamental, but often overlooked, question is how such victim groups are identified. Is identification based on objective indicators of the group’s existence, or is it based on subjective perceptions of both the group itself and those around it?
The 2005 Report of the International Commission of Inquiry on Darfur
to the United Nations Secretary-General, by a U.N. panel led by Antonio Cassese, former President of the International Criminal Tribunal for the former Yugoslavia, reflects what has become a conventional legal wisdom: that identification of victim groups for the purpose of genocide has evolved to such extent that it may now be based on entirely subjective evidence. At the heart of this position one usually finds the jurisprudence of the ICTY and its counterpart, the International Criminal Tribunal for Rwanda, with the latter often identified as the “birth place” of the subjective identification of victims groups.
Close examination of this jurisprudence reveals, however, significant discord between the principles espoused and the actual forms of evidence used to identify victims in a given case. Despite strong statements that a victim group may be identified based on either self-perception or the perception of perpetrators, almost no case before the ad hoc tribunals has identified a victim group using subjective evidence alone. Before the ICTR, all cases have relied on a combination of objective factors, such as evidence of the Rwandan legal and administrative system, with subjective factors, such as the self-identification of persons appearing before the tribunal.
Where, then, is the subjective evolution referred to in the Darfur Report?
It lies in the fact that the evidence that the ad hoc tribunals have labelled as objective -- for example, a legal system dividing persons into the categories of Hutu and Tutsi -- has an underlying subjective essence. The Darfur Report describes this process as follows:

[T]he process of formation of a perception and self-perception of another group as distinct (on ethnic, national, religious or racial grounds) … may begin as a subjective view, as a way of regarding the others as making up a different and opposed group, it gradually hardens and crystallizes into a real and factual opposition … from subjective becomes objective.

This notion is key to understanding the purported subjective evolution referred to in the Darfur Report. The evolution is not in the method of identification itself, but in the manner in which one understands the process of identification. Those factors -- which lawyers and the ad hoc tribunals have been quick to regard as objective (such as legal and administrative mechanisms) -- may be more properly understood as part of ongoing subjective processes of group identification. Indeed, they have long been so regarded in the field of sociology.
The first foray of the International Criminal Court into the crime of genocide in the case against Sudan's incumbent President, Prosecutor v. Omar Hassan Ahmad Al Bashir, neatly demonstrates the relevance of these issues. Although the issue arises only obliquely, that case demonstrates that the victim group itself may be different depending on how it is identified:
► The majority of the Pre-Trial Chamber I, in its March 4, 2009, decision on the Prosecutor’s application for a warrant of arrest, sought to rely on objective factors related to language, custom, and land to identify the victim group. In so doing, it identified three separate victim groups – the Fur, Masalit, and Zaghawa.
► But in her dissenting opinion, Judge Anita Ušacka focused instead on the existence of a group which, in the societal context of the counter-insurgency campaign in Darfur, is regarded simply as a group of “African tribes”. By focusing more on subjective perceptions, Judge Ušacka identified a different victim group than did her judicial colleagues. (As IntLawGrrl Beth Van Schaack posted, this past February the ICC Appeals Chamber endorsed Judge Ušacka's approach, and thus reversed the 2009 ruling of the pretrial panel. A 2d warrant to arrest Bashir on genocide was issued last Monday.)
The identification of the victim group of genocide, in short, depends on where and how one is looking in the first place.
The underlying theme is that both subjective and objective evidence of group identification is permissible, and that there is no need to “disguise” as objective those factors ultimately having subjective foundations.

(credit for photo of camp for displaced Darfuris (c) UNICEF/NYHQ2006-0559/Shehzad Noorani)

Bucking the Trend on Pre-Trial Detention

We've blogged a bit before about the "newest tribunal on the block," the Special Tribunal for Lebanon (building at right) devoted to prosecuting political assassinations and acts of terrorism in Lebanon.
The Tribunal has been convened with Professor Antonio Cassese (below left), former President of the International Criminal Tribunal for the former Yugoslavia and Chair of the International Commission of Inquiry for Darfur, as President (prior posts). It officially started to function on March 1, 2009. (Controversially (prior IntLawGrrls post), many of the other judges have been kept anonymous, putatively for their safety, raising the specter of faceless judges presiding over star chambers. Only four of the judges are Lebanese).

Later in the month of March, the Tribunal's Prosecutor requested the Lebanese authorities to undertake two actions: pursuant to Article 4 of the Tribunal’s Statute, to defer their investigation of the lethal attack against Rafik Hariri; and to hand over court records, any probative evidence, and the names of suspects. Article 4 reflects the system of primacy that characterizes relations between states and the 2 ad hoc international criminal tribunals, and that stands in contrast with the principle of complementarity that governs the International Criminal Court. Article 4 states:

Upon the assumption of office of the Prosecutor, as determined by the Secretary-General, and no later than two months thereafter, the Special Tribunal shall request the national judicial authority seized with the case of the attack against Prime Minister Rafiq Hariri and others to defer to its competence. The Lebanese judicial authority shall refer to the Tribunal the results of the investigation and a copy of the court’s records, if any. Persons detained in connection with the investigation shall be transferred to the custody of the Tribunal.

The Tribunal issued its first ruling in April of 2009, releasing from pre-trial detention four individuals -- Jamil Mohamad Amin El Sayed, Ali Salah El Dine El Hajj, Raymond Fouad Azar, and Mostafa Fehmi Hamdan -- who had been detained by Lebanese authorities prior to the establishment of the Tribunal. The Rules granted the Prosecutor, Canadian Daniel A. Bellemare (left), limited time to bring charges against the four individuals, two of whom are Generals, two others, Brigadier Generals. But Bellemare determined that even with the Lebanese information, he had not yet marshaled sufficient evidence to justify continued detention; thus he requested the release of the four. (Indeed, apparently several witnesses modified their statements, and one key witness retracted his statement incriminating the accused (See here, para. 37)).

In ruling on the Prosecutor's decision to release the individuals, the Special Tribunal (at para. 22, note 7) cited jurisprudence from the Human Rights Committee, the body charged with interpreting the International Covenant on Civil and Political Rights, for the proposition that

pre-trial detention should be the exception.

See Human Rights Committee, Hill v. Spain, Communication No. 525/1993, para. 12.3 (April 2, 1997).

The Special Tribunal for Lebanon concluded that the Prosecution did not make “a manifest error of judgment in exercising his discretionary power” and approved the release. The opinion is available here.

This ruling is notable when compared to the practice before the Extraordinary Chambers in the Courts of Cambodia where -- as we've discussed here, here, and here -- pre-trial detention, even for octogenarians, appears to be the norm.

JCE before the ECCC

As we’ve blogged before, the August 8, 2008 Closing Order (Indictment) filed before the Extraordinary Chambers in the Courts of Cambodia (ECCC) (its first) with respect to defendant Duch. Duch, who ran the detention, interrogation and execution camp S-21, a.k.a. Tuol Sleng (above) (photo credit), has been indicted for crimes against humanity (imprisonment, enslavement, torture, rape, murder, extermination, persecution, other inhumane acts) and war crimes (unlawful confinement, depriving rights to a fair trial, wilfully causing great suffering, torture and inhumane treatment, willful killing). In terms of the applicable forms of responsibility, Duch (left) is alleged to have committed, ordered, planned, instigated, aided, and abetted the crimes in question. In addition, he has been indicted under the doctrine of superior responsibility by virtue of the fact that he exercised effective command and control over the staff of S-21. The Closing Order limits his “commission” of crimes to those incidents in which Duch “personally tortured or mistreated detainees.”

The Co-Prosecutors have appealed the Closing Order, arguing inter alia that Duch should also have been indicted for his participation in crimes pursuant to a joint criminal enterprise (JCE). The ECCC Law does not specifically mention the availability of JCE as a form of commission, but the International Criminal Tribunal for Yugoslavia (ICTY) in the landmark Tadić decision treated JCE as a prosecutable form of “commission,” even though its Statute is also silent as to this form of responsibility and excludes conspiracy except with respect to the crime of genocide (in keeping with Article III of the Genocide Convention).

The ECCC invited Professor Antonio Cassese (left), among others, to submit an amicus curiae brief focused on the availability of the doctrine of JCE before the ECCC, with a particular emphasis on its applicability during the Khmer Rouge era. Incidentally, another defendant, Ieng Sary (below left), moved to disqualify the brief on the ground that it would be “result determinative” given that Cassese served on the appellate panel of the International Criminal Tribunal for the former Yugoslavia that rendered the Tadić opinion. The Pre-Trial Chamber rejected the disqualification challenge for lack of standing.
As Sary prophesied, the brief, which was filed on October 27, 2008, largely tracks the ICTY’s reasoning in the Tadić case. In particular, it identifies a collection of cases from the post-World War II prosecutions that were based on theories of common purpose or design and argues that these doctrines had crystallized into customary international criminal law prior to 1975. In addition, the brief argues that JCE liability would have been sufficiently established and assessable in domestic legislation and case law (including from France and Cambodia) to provide adequate notice to the accused in keeping with the principle of nullum crimen sine lege (no crime without law).

JCE is traditionally conceived of as encompassing three overlapping forms.
► The first (“basic”) mode provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan.
► The second (“systemic”) form provides for liability for individuals who contribute to the maintenance or essential functions of a criminal institution or system, such as a concentration or detention camp.
► The third, and most controversial form, provides for extended liability, not only for crimes intentionally committed pursuant to the common design, but also for crimes that were the natural and foreseeable consequence of implementing the common design.
The theory with this latter form is that participants in the JCE willingly took the risk of the commission of additional non-intentional but foreseeable crimes.

Most relevant to S-21, of course, is the second JCE form. Under this form, Duch could be held liable not only for crimes he personally committed or ordered, but also for crimes that were committed throughout S-21 pursuant to the prison’s criminal mission. (Photo at right is a display from S-21, now a museum, showing dozens of the thousands of people who passed through the prison. More photos are available here). The punishment accorded to the defendant can be modulated at the sentencing phase to reflect the precise degree of an individual’s involvement in, and thus culpability for, the crimes of the JCE.

It is not clear how many crimes might escape prosecution in the absence of JCE allegations in the indictment.
► As chairman of S-21, Duch can be held responsible for any crimes committed by his subordinates when he knew, or should have known, about such crimes and failed to take adequate steps to prevent or punish them.
► He can also be held directly liable for ordering or planning crimes, or for otherwise aiding or abetting them through the knowing or intentional provision of substantial assistance to the direct perpetrator.
The only crimes that seem to fall through the cracks without JCE liability are crimes committed by non-subordinates (individuals over whom Duch did not exercise effective command or control), crimes of which he was not aware and could not have reasonably been aware, or crimes that he did not order, plan, or substantially assist.

The third, extended, form of JCE could also be utilized to hold Duch responsibility for crimes (such as rape and other forms of sexual violence) that he did not order, did not intend to be committed, or did not know had been committed, but were nonetheless foreseeable given the abject conditions of detention prevailing at S-21.

Given the volumes of direct evidence against Duch, including his own partial confessions and admissions as detailed in the Closing Order, he is unlikely to escape responsibility entirely. Nonetheless, the Co-Prosecutors are no doubt looking to the future to ensure that JCE liability is available for other defendants in the dock who were likely very far from the commission of crimes, but nonetheless could be alleged to have participated in, indeed launched, a vast JCE to establish a utopian agrarian state, through violence where necessary, and to rid Cambodia of enemies of the revolution.